Notestine v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JONATHAN NOTESTINE,
Petitioner,
vs.
EARL HOUSER,
Respondent. Case No. 3:21-cv-00072-RRB
ORDER OF DISMISSAL
Jonathan Notestine, representing himself from Goose Creek Correctional
Center, where he is housed as a pretrial detainee, has filed a habeas petition under
28 U.S.C. § 2241, claiming that the state court is denying his rights in a criminal
case in which he is a defendant.1 	Mr. Notestine has also filed an Application to
Proceed in District Court without Prepaying Fees or Costs, without providing the
required prison trust account statement to show that he is unable to pay the $5.00
filing fee in this case; and a Motion for Appointment of Counsel, also without the
required financial affidavit in support.2 More recently, Mr. Notestine filed additional
documents, showing his unsuccessful attempts at receiving a speedy trial, in
support of his Petition.3
1 Docket 1; State of Alaska v. Jonathan Robert Notestine, Alaska Superior Court Case
No. 3AN-20-08850CR.
2 Dockets 3, 4.
3 Docket 5.
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The Court takes judicial notice4 that, on April 6, 2021, the Chief Justice of
the Supreme Court for the State of Alaska issued Special Order 8259, stating that
“misdemeanor jury trials may resume on April 19, 2021 under the direction of the
presiding judge. Class B and class C felony trials may resume on June 1, 2021
under the direction of the presiding judge. [However, t]he presiding judge may limit
or suspend misdemeanor or felony jury trials for any district or location when
required for public health or to comply with local health mandates.”5 	The public
record shows that among the 25 charges against him, Mr. Notestine has been
charged with Class B and Class C felonies, as well as misdemeanors which
include violating conditions of release.6 The record also shows that Mr. Notestine
was arraigned on November 17, 2020, and has apparently been incarcerated since
that time.7
4 Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact. . ..” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
available records . . . from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
5 http://www.courts.alaska.gov/covid19/index.htm#socj, Special Order 8259 at 1; see also
State v. Baker, 425 P.3d 210, 212 (Alaska Ct. App. 2018) (“Alaska Criminal Rule 45
governs a defendant’s statutory right to a speedy trial under Alaska law.”).
6 See https://records.courts.alaska.gov/eaccess/searchresults, 3AN-20-08850CR.
7 See id.
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SCREENING REQUIREMENT
Federal courts have general habeas jurisdiction under 28 U.S.C. § 2241.8
A petitioner may properly challenge state pretrial detention under § 2241.9 	But a
court must “promptly examine” a habeas petition.10 	“If it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion. . .”11
In conducting its review of a self-represented litigant’s pleadings, a court
must liberally construe the pleadings and give the petitioner the benefit of the
doubt.12
8 See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).
9 See Stow v. Murashige, 389 F.3d 880, 885-88 (9th Cir. 2004).
10 Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. The same procedural rules for 28 U.S.C. § 2254 and § 2255 govern 28 U.S.C.
§ 2241.
11 Id.
12 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
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DISCUSSION
A writ of habeas corpus allows an individual to test the legality of being
detained or held in custody by the government.13 	The writ “is a vital ‘instrument
for the protection of individual liberty’ against government power.”14
Under 28 U.S.C. § 2241, this Court may grant a writ of habeas corpus to a
prisoner “in custody in violation of the Constitution or laws or treaties of the United
States.”15 This habeas statute provides federal courts with general habeas corpus
jurisdiction.16 	28 U.S.C. § 2241 is the proper avenue for a state prisoner who
wishes to challenge his state custody without a state judgment.17 When examining
a § 2241 petition from a pretrial detainee claiming a violation of his or her right to
a 	speedy 	trial, 	a 	significant 	delay 	in 	the 	proceedings 	must 	be 	shown.18
13 Rasul v. Bush, 542 U.S. 466, 474 (2004).
14 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015); quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008).
15 28 U.S.C. § 2241(c)(3).
16 See Magana-Pizano, 200 F.3d at 608 & n.4.
17 Stow, 389 F.3d at 885-88 (quoting White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.
2004) (“By contrast, the general grant of habeas authority in § 2241 is available for
challenges by a state prisoner who is not in custody pursuant to a state court judgment-
for example, a defendant in pre-trial detention or awaiting extradition.”)).
18 See Barker v. Wingo, 407 U.S. 514, 530-31 (1972).
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Mr. Notestine was arraigned on November 17, 2020, so he appears to have been
incarcerated for five months.19
In McNeely v. Blanas,20 the Ninth Circuit found a delay of three years to be
substantial, such that prejudice was presumed, triggering an inquiry under Barker
v. Wingo.21 The four-part test articulated by the Supreme Court in Barker is used
to 	determine 	whether 	government 	delay 	had 	abridged 	a 	defendant’s 	Sixth
Amendment right to a speedy trial.22 	The factors to be considered in a Barker
inquiry include: “(1) the length of the delay; (2) the reasons for the delay; (3) the
accused’s assertion of the right to speedy trial; and (4) the prejudice caused by the
delay. No single factor is necessary or sufficient.”23 Clearly, however, at this point,
Mr. Notestine has not been incarcerated for a “substantial” time under federal law.
And the Covid-19 pandemic creates a valid reason for postponing Mr. Notestine’s
trial during these five months. 24
19 See https://records.courts.alaska.gov/eaccess/searchresults, 3AN-20-08850CR.
20 336 F.3d 822, 826 (9th Cir. 2003).
21 407 U.S. 514, 530 (1972).
22 McNeely, 336 F.3d at 826 (citing Doggett v. United States, 505 U.S. 647, 652 n.1
(1992)).
23 Id. (citing Barker, 407 U.S. at 530).
24 But see United States v. Sheikh, No. 2:18-cr-00119 WBS, 	___ F.Supp.3d ___, 2020
WL 5995226, at *3 (E.D. Cal. Oct. 9, 2020) (Discussing the right to a speedy trial in a
federal criminal case, explaining that “the coronavirus alone does not give the court the
liberty to simply exclude time. Rather, the court must conduct a ‘deliberate inquir[y] into
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I. 	Appropriate Relief
For relief, Mr. Notestine requests: “Dismissal of charges due to obstruction
of justice of our constitutional rights.25 	The due process clauses of the Fifth and
Fourteenth Amendments bar pretrial detention unless detention is necessary to
serve a compelling government interest.26 	Thus, although a state may “impose
conditions on an arrestee’s release, such as bail … [b]ail set at a figure higher than
an amount reasonably calculated to fulfill [its] purpose [of assuring the presence
of the accused at trial] is ‘excessive’ under the Eighth Amendment.”27
Mr. Notestine’s request that the Court require charges against him in the
state courts be dismissed is not appropriate.28 	A speedy trial claim may be
whether an ends-of-justice continuance is justified by the circumstances surrounding a
particular case.’”) (citation omitted).
25 Docket 1 at 8.
26 Reem v. Hennessy, Case No. 17-cv-06628-CRB, 2017 WL 6765247, at *1 (N.D. Cal.
Nov. 29, 2017) (unpublished) (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th
Cir. 2014)).
27 Id. (quoting Lopez-Valenzuela, 770 F.3d at 777).
28 Id., at *2 (“A number of circuit courts have entertained habeas petitions alleging
unconstitutional detention or excessive bail prior to trial. See Atkins v. People of the State
of Mich., 644 F.2d 543, 549 (6th Cir. 1981) (‘The protection against unreasonable bail
pending trial has been found by the federal courts to be one of the few rights ... whose
vindication may be asserted prior to trial, either by direct appeal of an adverse
interlocutory order or by a petition for habeas corpus.’) (emphasis added); accord, Finetti
v. Harris, 609 F.2d 594, 599 (2d Cir. 1979); Jenkins v. Harvey, 634 F.2d 130, 132 (4th
Cir. 1980); Meechaicum v. Fountain, 696 F.2d 790, 792 (10th Cir. 1983).”); Belcher v.
Nevada, 	3:20-cv-00554-MMD-CLB, 	2020 	WL 	6731725, 	at 	*3 	(D. 	Nev. 	Oct. 	19,
2020), report and recommendation adopted, No. 3:20-cv-00554-MMD-CLB, 2020 WL
6729279 (D. Nev. Nov. 16, 2020) (slip op.) (“When a pretrial detainee challenges a bail
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reviewed under § 2241 if a pretrial detainee is seeking to compel the state to bring
him to trial, rather than seeking dismissal of the charges.29 	Thus, although a
federal court can order a state court to bring a petitioner to trial, federal courts do
not order that state charges be dismissed.30 	The Court will not, therefore, address
the merits of any underlying charges against Mr. Notestine, or order that any state
criminal charges against Mr. Notestine be dismissed.
determination, the Supreme Court and the Ninth Circuit have held that a writ of habeas
corpus is an appropriate remedy. Stack [v. Boyle], 342 U.S. 1, 6-7 (1951); Arevalo v.
Hennessy, 882 F.3d 763, 767 ([9th Cir.] 2018) (where pretrial detainee alleged due
process violations regarding bail, and Younger abstention was not appropriate because
detainee properly exhausted state remedies, judgment was reversed and remanded with
instructions to grant a conditional writ of habeas corpus).”); compare Davie v. Villanueva,
No. CV 20-6580 MWF (PVC), 2020 WL 4901611, at *3 (C.D. Cal. Aug. 20, 2020) (“[T]o
the extent that he is seeking release on zero or reduced bail prior to trial due to health
concerns arising from the coronavirus pandemic, this claim overlaps with his excessive
bail claim. Furthermore, state courts can and do offer an adequate forum to litigate such
claims.”) (noting that a state appellate court granted “in part pretrial detainee’s habeas
petition seeking release on bail and order[ed] trial court to hold a hearing to ‘consider
entering a new and different order setting bail consistent with the [county’s] June 23, 2020
amended bail order,’ which was adopted to address inmate overcrowding during the
COVID-19 pandemic).”) (citation omitted).
29 See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-90 (1973)
(“Petitioner does not, however, seek at this time to litigate a federal defense to a criminal
charge, but only to demand enforcement of the Commonwealth’s affirmative constitutional
obligation to bring him promptly to trial.”) (citation omitted).
30 Compare United States v. Olsen, No. SACR 17-00076-CJC, 2020 WL 6145206, at *1
(C.D. Cal. Oct. 14, 2020) (“Because the Central District denied Mr. Olsen a public and
speedy trial under the Sixth Amendment, this Court now must dismiss the [federal]
indictment against him.”), appeal filed 11/13/20, 9th Cir. No. 20-50329, 2020 WL
6145206.
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II. 	Abstention
The Younger abstention doctrine provides that federal courts may not
generally exercise jurisdiction when doing so would interfere with state judicial
proceedings.31 	The core of Younger abstention is that a federal court cannot
interfere with pending state court criminal proceedings, absent a “showing of bad
faith, harassment, or any other unusual circumstance that would call for equitable
relief.”32 A federal court
must abstain under Younger if four requirements are met: (1) a state-
initiated 	proceeding 	is 	ongoing; 	(2) 	the 	proceeding 	implicates
important state interests; (3) the federal plaintiff is not barred from
litigating federal constitutional issues in the state proceeding; and (4)
the federal court action would enjoin the proceeding or have the
practical 	effect 	of 	doing 	so, 	i.e., 	would 	interfere 	with 	the 	state
proceeding in a way that Younger disapproves.33
The Court of Appeals for the Ninth Circuit has directly addressed abstention,
regarding the claim of a state court violating the right to a speedy trial, explaining:
31 See Younger v. Harris, 401 U.S. 37, 41 (1971).
32 Younger, 401 U.S. at 54; see also Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)
(In Perez v. Ledesma, 401 U.S. 82, 85 (1971), the Supreme Court “limited the category
of ‘extraordinary circumstances’ to encompass only ‘cases of proven harassment or
prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
conviction,’ or where ‘irreparable injury can be shown.’”); Brown v. Ahern, 676 F.3d 899,
901 (9th Cir. 2012) (“Consistent with this observation, we specifically rejected in Carden
the argument that a claimed violation of the Speedy Trial Clause … sufficed in and of
itself as an independent ‘extraordinary circumstance’ necessitating pre-trial habeas
consideration.”) (citing Carden at 84).
33 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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Younger does not “require[ ] a district court to abstain from hearing a
petition for a writ of habeas corpus challenging the conditions of
pretrial detention in state court” where (1) the procedure challenged
in the petition is distinct from the underlying criminal prosecution and
the challenge would not interfere with the prosecution, or (2) full
vindication 	of 	the 	petitioner’s 	pretrial 	rights 	requires 	intervention
before trial.34
The State of Alaska has an important interest in enforcing its criminal laws,
and Mr. Notestine’s criminal cases in state court remain ongoing. Mr. Notestine’s
allegation, that he is being denied his right to a speedy trial in state court, should
be addressed in his state court criminal proceedings, where he may also continue
to address the issue of bail.35 This Court should not interfere with the trial court’s
fact-finding responsibilities and legal decisions in that case, unless “full vindication
of the petitioner’s pretrial rights requires intervention before trial.”36 This does not
appear to be such a case.
34 Page v. King, 932 F.3d 898, 903 (9th Cir. 2019) (citing Arevalo, 882 F.3d at 764, 766–
67).
35 See Brown, 676 F.3d at 900-901 (A “federal court’s exercise of jurisdiction over a
habeas petition that raises an affirmative defense to state prosecution before trial and
conviction can have the same effect as a direct injunction of ongoing state proceedings.”)
(citing Carden, 626 F.2d at 83).
36 Page, 932 F.3d at 903.
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III. 	Exhaustion
Exhaustion is required under common law before bringing a federal petition
for a writ of habeas corpus under 28 U.S.C. § 2241.37 	Although there is no
statutory exhaustion requirement for a petition brought under § 2241, principles of
federalism 	and 	comity 	require 	the 	court 	to 	abstain 	until 	all 	state 	criminal
proceedings are completed, and the petitioner exhausts the available state judicial
remedies, unless extraordinary circumstances warranting federal intervention prior
to a state criminal trial are found. 	A violation of the right to a speedy trial is not,
alone, an extraordinary circumstance warranting federal intervention.38
The Court may only address Mr. Notestine’s speedy trial claim after he fully
exhausts the available state court remedies,39 and upon a showing that this Court
should not abstain from addressing his claims.
37 See Braden, 410 U.S. at 488 (allowing petitioner to raise speedy trial claim prior to trial
under 28 U.S.C. § 2241, where he had exhausted available state remedies); Stow, 389
F.3d at 886; Reem, 2017 WL 6765247, at *2 (“The exhaustion requirement addresses the
same concerns of comity between federal and state courts as Younger does. See
Dickerson v. State of La., 816 F.2d 220, 225-26 (5th Cir. 1987) (‘The exhaustion doctrine
of section 2241(c)(3) was judicially crafted on federalism grounds in order to protect the
state courts’ opportunity to confront and resolve initially any constitutional issues arising
within their jurisdictions as well as to limit federal interference in the state adjudicatory
process.’).”).
38 Carden, 626 F.2d at 83-85.
39 See, e.g., Stack, 342 U.S. at 6-7 (“While habeas corpus is an appropriate remedy for
one held in custody in violation of the Constitution, … 28 U.S.C.A. § 2241(c)(3), the
District Court should withhold relief in this collateral habeas corpus action where an
adequate remedy available in the criminal proceeding has not been exhausted.”) (citation
omitted); Webb v. Simpson, Case No. 3:19-CV-5561-BHS-DWC, 2020 WL 589818 at *1
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Accordingly, IT IS HEREBY ORDERED:
1. This case is DISMISSED without prejudice.
2. The Application to Proceed without Prepaying Fees or Costs, at Docket 3,
is DENIED.40
3. The Motion for Appointment of Counsel, at Docket 4, is DENIED as moot.
4. The Clerk of Court is directed to enter Judgment accordingly.
Dated at Anchorage, Alaska this 19th day of April, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
(W.D. Wash. Jan. 6, 2020) (slip op.) (“Petitioner alleges his constitutional rights are being
violated, including violations of his right to be free from excessive bail and his right to a
speedy trial.… Petitioner has not shown there is an absence of available state corrective
processes or that circumstances exist rendering any state process ineffective.”).
40 Mr. Notestine did not provide his prison account statement, showing that he cannot
afford to pay the $5.00 filing fee in this case.
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